Lewis v. US, 88-385C(1).
| Decision Date | 29 December 1988 |
| Docket Number | No. 88-385C(1).,88-385C(1). |
| Citation | 702 F. Supp. 231 |
| Parties | Mamie LEWIS, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
W. Bevis Schock, St. Louis, Mo., for plaintiff.
Henry Fredericks, Asst. U.S. Atty., St. Louis, Mo., for defendant.
Plaintiff Mamie Lewis brought this negligence action against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, to recover damages for injuries sustained when she slipped and fell outside of the federal penitentiary in Terre Haute, Indiana. Following bifurcation of the liability and damages portions of this case, the liability issue was tried before the Court without a jury. At the close of plaintiff's case, defendant moved for judgment in its favor on the ground that plaintiff failed to prove actionable legal liability against defendant. Defendant renewed its motion at the close of all evidence.
The Court construes defendant's motion as a motion for dismissal pursuant to Fed.R.Civ.P. 41(b). In a non-jury case, the Court may dismiss the plaintiff's case at the close of plaintiff's evidence if plaintiff fails to show any right to relief under the facts and applicable law. Fed.R.Civ.P. 41(b). Although a Rule 41(b) motion in a non-jury trial is similar to a motion for a directed verdict under Rule 50(a) in a jury trial, see C. Wright & A. Miller, Federal Practice and Procedure § 2371 (1971), the Court's role in each case is "fundamentally different." Continental Casualty Co. v. DLH Services, Inc., 752 F.2d 353, 355 (8th Cir.1985). The Court may not decide the facts on a motion for a directed verdict, however, on Rule 41(b) motion, the Court "is free to assess the credibility of witnesses and the evidence" in determining whether plaintiff has made out a case. Id. at 356.
On December 5, 1986, plaintiff Mamie Lewis went to the United States Penitentiary in Terre Haute, Indiana, to visit her husband who was an inmate there. The United States Penitentiary is owned and operated by the Department of Justice which is an agency of the United States. Plaintiff was accompanied by her two children, a friend Sharon Hawkins, and a cousin-in-law Barbara Jordan and her child. The group arrived at the penitentiary at 8:00 a.m. when visiting hours began. They entered the premises by walking through the main gate and up the front driveway. Plaintiff had used this route to enter the building once before on the previous day. According to plaintiff, it was a cold, sunny day, but there was no ice or water on the ground when she entered the building.
Plaintiff and her companions remained in the penitentiary until 3:00 p.m. when visiting hours ended. While plaintiff and her children were in the penitentiary visiting plaintiff's husband, an inmate hosed down the driveway which caused ice to form.
When plaintiff left the penitentiary at 3:00 p.m., the temperature was below freezing. Plaintiff led the others down the driveway toward the main gate. When plaintiff was near the main gate she slipped and fell on a patch of ice, which was approximately 10 to 20 feet long, and landed on her back. Although nothing was obstructing her view, plaintiff did not see the ice before the fall because she was talking and was looking straight ahead. However, one of plaintiff's companions, Sharon Hawkins, saw the wet spot from 10 to 20 feet away. After plaintiff fell, she realized it was ice because she could feel the ice beneath her back.
After her fall, plaintiff was transported by ambulance to the Terre Haute Regional Hospital. Plaintiff was examined and x-rays were taken in the emergency room. After the x-rays revealed no fractures or dislocations, plaintiff was given a prescription for pain medicine and was released. Plaintiff then walked out of the hospital and her friend drove her and the others back to St. Louis in plaintiff's car. Upon her return to St. Louis, plaintiff received follow-up treatment by a chiropractor.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1346, 2671-2680. Under the FTCA, the Court applies the law of the state where the act or omission occurred to determine the government's liability. 28 U.S.C. § 1346(b); Mandel v. United States, 793 F.2d 964, 968 (8th Cir.1986). Therefore, the substantive law of Indiana governs this case.
To recover in a negligence action under Indiana law, plaintiff must establish that 1) defendant owed plaintiff a duty of care; 2) defendant breached the requisite duty; and 3) plaintiff's injury was proximately caused by defendant's breach. Poe v. Tate, 161 Ind.App. 212, 315 N.E.2d 392, 295 (1974). In premise liability cases, the landowner's duty of care under Indiana law depends upon whether the person entering the premises is an invitee, licensee, or trespasser. City of Bloomington v. Kuruzovich, 517 N.E.2d 408, 412 (Ind.App.1987). In the present case, plaintiff could be classified as a licensee or invitee.
A licensee is a person who "enters the premises for her own convenience, curiosity or entertainment." Fleischer v. Hebrew Orthodox Congregation, 504 N.E.2d 320, 322 (Ind.App.1987). A social guest is a licensee under Indiana law. Xaver v. Blazak, 181 Ind.App. 245, 391 N.E.2d 653, 655 (1979). A landowner owes a licensee only a duty to "refrain from willfully or wantonly injuring the licensee ... and to warn the licensee of any latent danger on the premises of which the owner has knowledge." Wright v. International Harvester Co., 528 N.E.2d 837, 839 (Ind. App.1988) (citations omitted). A licensee may not recover for injuries caused by the owner's negligence in maintaining the premises. Fleischer, 504 N.E.2d at 322. An invitee, on the other hand, may recover for injuries caused by the owner's negligence. Id.
Although many Indiana cases have focused upon business invitees and have defined an invitee as one who enters the premises to transact business or to otherwise benefit the landowner, see e.g. Mullins v. Easton, 176 Ind.App. 590, 376 N.E.2d 1178 (1978); Hollowell v. Greenfield, 142 Ind.App. 344, 216 N.E.2d 537 (1966); Standard Oil Co. of Indiana, Inc. v. Scoville, 132 Ind.App. 521, 175 N.E.2d 711 (1961); recently, the Indiana Court of Appeals expanded the definition of invitee to encompass public invitees as well as business invitees. See Fleischer, 504 N.E. 2d at 323-24 (); Kuruzovich, 517 N.E.2d at 413 (). "A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public." Fleischer, 504 N.E.2d at 322 (quoting Restatement (Second) of Torts § 322(2) (1965)).
No Indiana decision addresses the status of a prison visitor and the Court's extensive research did not reveal any case addressing the issue of whether a prison visitor is an invitee or licensee. Therefore, the Court must determine how the highest Indiana court would rule if presented with this issue.
Defendant argues that plaintiff should be classified as a licensee because plaintiff came on the premises for her own convenience or entertainment as a social guest of her husband, and was not invited by the prison. An invitation is essential to the invitee status. Restatement (Second) of Torts § 331, Comment b (1965). While mere permission or passive tolerance of a visit is not sufficient to constitute an invitation, a landowner's words or conduct, which lead a visitor to believe that his or her entry is desired, may constitute an invitation. Id.; Hammond v. Allegretti, 262 Ind. 82, 311 N.E.2d 821, 824-25 (1974). The Court concludes that defendant, by opening the penitentiary to visitors during certain visiting hours, impliedly invites or encourages family members of inmates to enter the premises, and thus, assumes the obligation of keeping the premises reasonably safe for visitors. Plaintiff, by entering the premises for the purpose for which the facility is held open, was a public invitee.
To determine whether an landowner has breached its duty of care to an invitee, the Indiana courts apply the Restatement (Second) of Torts § 343 (1965):
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